JUDGMENT 1. - The learned Munsif & Judicial-Magistrate - Thanagazi has passed an order under S. 319, Cr. P. C. that the case shall also proceed against the accused petitioner for an offence u/s 420/468. I.P.C. The order of the learned magistrate dated 19.3.79 (Annexure Page 9 to the petition) has been challenged and it is prayed that the same be quashed. 2. To dispose of this application some facts need be stated, which are, that the accused-petitioner was a Block Development Officer in Panchayat Samiti, Thanagazi in the year 1976-77. There is a nursery under the Panchayat Samiti and one Rameshwar, Nursery Man, looks after the same. In the month of April, 1977 necessity arose for engaging additional labour for harvesting the standing the standing crop of wheat, and, therefore, the Nursery man was directed to engage additional labour, and accordingly six woman labourers, namely, Kailashi, Durga, Dhoopi, Misri, Lichma and Shanti were engaged and the total attendance of the labourers was 33. The daily wages at the rate of Rs. 5/- per day per labourer were to be paid. Thus, for 33 days, an amount of Rs. 165/- was to be paid to six labourers. It is alleged that a voucher for Rs 165/-was prepared and the same was paid to Ramesh war for being paid six labourers, above named. Rameshwar only paid Rs. 4/-per day to each of them, and thus paid only a sum of Rs. 132/-, whereas he should have paid Rs. 165/ - It appears that on 18.4.77, there was some dispute raised by the labourers about the wages and attention of Shivnarain Advocate was attracted. He filed a report to the S. H. O. Thanagazi, and after investigation, a charge sheet was filed only against Rameshwar, the Nursery Man. During the course of the trial against, the said Rameshwar, two witnesses for the 'prosecution were examined, namely, Shivnarain (F W 1) and Nathuram (P W 2). An application was filed on 19.3.79 by Rameshwar accused requesting the learned Magistrate to take action and summon the accused-petitioner as well. The learned Magistrate passed the impugned order. 3. During the course of the trial against, the said Rameshwar, two witnesses for the 'prosecution were examined, namely, Shivnarain (F W 1) and Nathuram (P W 2). An application was filed on 19.3.79 by Rameshwar accused requesting the learned Magistrate to take action and summon the accused-petitioner as well. The learned Magistrate passed the impugned order. 3. The submission of the learned Advocate for the accused-petitioner is, that there is absolutely no evidence on record, on which it can be said that it could appear to the learned Magistrate that the accused - petitioner, who was not an accused, has also committed an offence u/s 429/458, IPC. and, therefore, the order passed by the learned Magistrate u/s 319, Cr. P. C. that the accused-petitioner be also tried along with Rameshwar amounts to abuse of the process of the Court. 4. A look at S. 319, Cr. P, C. will show that if in the course of any enquiry into or trial of an offence, it appears from the evidence that any person not being the accused has committed any offence for which he should be tried together with the accused, the Court may proceed against such person for the offence which appears to have been committed by him. Therefore, the order to proceed against a person, not an accused, and for his trial along with the other accused, can only be passed, if from the evidence it appears during the trial that he too has committed an offence. 'Evidence' has been defined in S. 3 of the Indian Evidence Act, 1872, and it means and includes (I) all statements which the court permits or requires to be model before it by witnesses in relation to matters of fact for enquiry, and (2) all documents produced for the inspection of the court. The finner is called as oral evidence, while tatter is a documentary evidence. Therefore, only on the evidence, referred to above, a court can take action against a person, not an accused, during the enquiry into and trial of an offence. In the instant case, only two witnesses were examined and the documents which were exhibited were, daily work diary and acquaintance roll (Ex. P. 1 and Ex. P. 2). Therefore, only on the evidence, referred to above, a court can take action against a person, not an accused, during the enquiry into and trial of an offence. In the instant case, only two witnesses were examined and the documents which were exhibited were, daily work diary and acquaintance roll (Ex. P. 1 and Ex. P. 2). If the statement of Shivnarain Sharma is perused, all that he states against the accused is, that though the payment was made by Rameshwar, but it was the B. D. O. at whose instance the payment was made and Rameshwar on being asked given out that the B. D. O. had instructed him to pay only Rs.420/468 and take a receipt of Rs. 5/-. Nathuram (P.W. 4) does not say anything. It can, therefore, be said that there is no direct or circumstantial evidence against the accused on which it could appear to the learned Magistrate during the trial off Rameshwar that the accused, who is not an accused, has also committed an offence u/s 420/468, IPC and as such should be tried along with Rameshwar. A look at the order of the learned Magistrate dated 19.3.79 will show that on the statements off Rameshwer and Nathuram and on the perusal of the record, (he does not mention B what record,), it appears that the accused had verified the record, and, therefore, prima facie case u/s 420/468, IPC is also made out against the accused, and cognizance is taken against him. After going through the record, it can be said that it does not appear that the accused made payment at a lesser rate than that on which the payment should have been made to the labourers. Nathuram does not state anything against the accused, but surprisingly the learned Magistrate has referred to his statement also.have already stand as to which it was stated by Shivnarain, and from that it could not. I appear that the accused has also committed any offence u/s 420/468, IPC, or under any question of the I. P. C. Therefore, the order u/s 379, Cr. P. C. taking cognizanee against the accused also under an offence u/s 420/468. IPC and ordering that them accused shall also be tried along with Rameshwar, amounts to abuse of the process of the Court and the same is hereby quashed. P. C. taking cognizanee against the accused also under an offence u/s 420/468. IPC and ordering that them accused shall also be tried along with Rameshwar, amounts to abuse of the process of the Court and the same is hereby quashed. In Consequence to this order, the entire proceedings against the accused-petitioner Laxminarain are also quashed.In the result, the application is allowed and the proceedings against accused- petitioner Laxmi Narain are hereby quashed.Petition Allowed. *******